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The Problem With the New "Opt Out" System For Providing High School Students' Names to Military Recruiters


Wednesday, Dec. 04, 2002

When public high school opened their doors this fall, military recruiters converged upon them, seeking student data. Schools and parents, taken aback by these unprecedented requests - for thirty years, this private information has been closely guarded - were surprised to discover that the requests were actually authorized by statute.

In January of this year, the "No Child Left Behind Act" was signed into law. The Act was touted as being designed to ensure that no child is left behind when it comes to getting a decent education. But it also had another, much less publicized aspect: It sought to ensure no child is left behind when it comes to military recruitment, as well.

According to a few sentences buried in the 670-page Act, public secondary schools must now supply recruiters for the armed forced with students' names, addresses and phone numbers (even unlisted ones). They must also allow these recruiters the same access to students on campus that college recruiters or prospective employers enjoy. If schools refuse, they lose their federal funding.

Parents can object and "opt out" of having their children's information disclosed to military recruiters. But to do so, they must have proper notice of the law, and must act in time to stop disclosure - and schools may not always provide sufficient notice (though it is technically required) and sufficient time for parents to "opt out."

Parents are entitled to control their children's private information, and to play a role in their important decision as to what to do with their lives when they graduate from high school. Yet the Act opens up the possibility that parents will be bypassed entirely when these decisions are made.

Previous Federal Law Governing Student Record Disclosure

The federal Family Educational Rights and Privacy Act (FERPA) - which remains law but has been modified by the relevant provisions of the No Child Left Behind Act - governs the release of student records by schools receiving federal funds.

It provided that parents must give written consent prior to disclosure of personal student data. In short, it instituted an "opt in," not an "opt out" system. And the "opt in," appropriately, was formal and written.

FERPA has always had a few, relatively innocuous exceptions, under which disclosure can be made without prior parental consent, under an "opt out" system. One exception is for information to be disclosed in the educational context - to, for example, professors, financial aid officers, and other schools to which the student is applying. Another exception is for "directory information" - contact information, in the form of names addresses and telephone numbers - which may, if a school so chooses, be sent to, for example, class ring and yearbook companies.

"Directory information," however, has never been released to military recruiters without parental consent, until now. Indeed, schools generally have had a longstanding policy against such release.

One might point out that "directory information" is not highly private, and has been released without consent before. But release of information to a class ring company or yearbook printer leads, at most, to a solicitation to buy a class ring or yearbook. At worst, the student will spend some money without his or her parents' permission.

In contrast, release of information to a military recruiter can lead to decisions with effects (whether good or bad) that can last a lifetime. Parents have a right to be part of those decisions. They are decisions that should be made in consultation with people who love and care for the student, not solely in consultation with people, however well-intentioned, whose very job is to recruit for the military.

Opting Out Versus Opting In: A Key, Recurring Privacy Issue

In much of the public debate over privacy today, there is often disagreement about whether consumers should "opt out" or "opt in" when it comes to letting others share their personal data. "Opt outs" are increasingly common, and even some "opt ins" are meaningless and virtually compulsory. (Think of the check-offs necessary to enter a website; how many consumers accept a contract they haven't read?)

Commercial entities, for obvious reasons, prefer consumers to have to opt out; it means they inevitably keep those customers that are simply too busy to opt out, or may not be aware of the option. Military recruiters likely feel the same way. Getting each parent's written consent is burdensome; having the school send parents a notice saying they can opt out if they choose is effortless.

Granted, the No Child Left Behind Act provides that such notice must be given. It says, specifically, that the school must "notify parents of the option to make a request [to opt out]," and honor such requests if they are made.

But the form of the notice is apparently up to the school, and there is nothing preventing schools from treating this important information routinely. It may reach parents as just another group email, among the day's spam. Or it may be just another photocopied announcement their child brings home (or, perhaps, misplaces).

The result will be predictable: School systems with active school boards, and educated and informed parents, may have a higher rate of opting out.

And what about language issues? Will non-English-speaking parents be able to understand the announcement? Multi-lingual notice is not required by the act, even in school districts with multi-lingual parents and students.

The Effect of September 11: Pressure to Join Up Without Thinking It Over

In this current climate of heightened patriotism, there is now a serious risk that high school students will be directly recruited for the military without their parents' knowledge, and urged to make the decision to join on their own, once they turn 18.

Since September 11, there has been greater pressure for both children and adults to appear more patriotic. Students who are contacted by military recruiters may be subject to peer and social pressure to join - even if it is not the right thing for them, or should be delayed in their particular case.

It is one thing to see a billboard and to decide to visit a recruiting station. It is another thing to receive a phone call at home from a persuasive recruiter. Parents need to be able to participate in and know of recruiters' contacts with their children, and children should not be subject to such contacts without their parents' formal, written permission.

An "opt in" system for parents would have been much preferable to an "opt out" system. That is the system for which we should lobby now. An issue of this level of gravity for children's futures deserves more careful considerations - consideration that includes parents as a matter of course.

Anita Ramasastry is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology.

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